The Forgotten: The Truth about Wrongful Convictions
A metric without consequence is a recipe for abuse, and abuse leads to wrongful convictions.
Based on my experience and the conversations I have had with activists, professors of law, attorneys, investigators and ex-law enforcement officers about the ease with which a wrongful convictions can be attained most are surprised that the numbers are what they are.
Which made me see that we could all benefit from a better understanding of why it is that there are over forty-thousand wrongful convictions every year in the U.S.
Recently, on my podcast MYLIFEplus25.com I made the argument that if this number represented forty-thousand people being shuffled into shipping containers on Long Beach harbor to alleviate some of L.A.’s homelessness issue, people would be protesting in the streets.
And, if this number represented forty-thousand elderly people being exterminated by the State so that the Social Security Administration could save a few bucks, without a doubt people would be rioting in the streets.
Likewise, if this number represented forty-thousand children with learning disabilities being rounded up by the State and sent to internment camps for the “betterment” and “glory” of the nation, that instead of protests or riots, people would be up in arms.
But because it’s happening mostly to people who are disenfranchised and otherwise without representation this tragedy repeats itself year after year. The State, through its corporate media apparatus has long since discovered how to divide and conquer us.
We are essentially pitted against one another for reasons of race, differences of religion, ethnicity, sexual orientation, or even for our views on social policies like education, healthcare, or Social Security.
Occasionally, in the cacophony of the chaos we hear a lone voice telling us, imploring us even, to look past our differences towards the bright light of our commonality. We listen, we may even nod our heads in agreement, but as we return to the exigencies of our lives, we forget.
We forget that we have more reasons to be united than divided; we forget that our differences are more imaginary than real. We forget that divided we are defeated, but together we are invincible.
Sometimes we forget how to forgive. We focus on the bad in someone and in doing so cheat ourselves of the good. We forget that despite all of our differences of opinion, we are still more alike than we are different. We even forget that we forget. But let us not forget the forgotten.
The reality in America related to wrongful convictions and the forgotten who they represent is that people, mostly people of color, and mostly people who are uneducated, poor, and mostly addicts of one drug or another are systematically being convicted of crimes that they didn’t commit and stored away in something not so different from the aforementioned shipping containers.
Understanding why this happens is a discussion unto itself, something I do at length in Rogue Code
In large part, the people who commit this crime of incarcerating the innocent—the police, prosecutors and judges—the very governmental officers cited by the Bureau of Justice (BJS.GOV), as the cause to “more than half of all wrongful convictions,” face no real consequences for their actions.
Obviously, why they do what they do is varied, but let us not forget that these are individuals who have sworn an oath to uphold the Constitution and the laws of this nation and intentionally fail to do so.
Whether out of convenience to their careers, or because of racism or prejudice, or simply because they lack any kind of moral fortitude, integrity or conscience is not as relevant as the fact that it’s intentional.
It is intentional and there are no legal consequences for it being intentional. There is no crime for intentionally robbing someone for decades of his life. There is no crime for intentionally sending someone to death row.
The perpetrators of these egregious actions—the police, the prosecutors, and the judges—are shielded from consequences by one form of qualified immunity or another. Which leads us to the deaf ears and cynical minds who ignore the reality of this very important issue.
Wrongful convictions are the result of a broken justice system that equates justice to vengeance and vengeance to winning. As Clarence Barrow said, “A courtroom is not a place where truth and innocence inevitably triumph; it is only and arena where contending lawyers fight not for justice but to win.”
Which leaves us wondering as to the primary objective of any prosecutor. Is it to convict, regardless of actual guilt or innocence, or is it to pursue justice?
Most don’t realize this but a prosecutor’s power goes virtually unchecked because he or she is immune from punishment for offenses against Justice or the innocent, regardless of how obtuse or flagrant their actions may be.
Which is why, according to research done by the Human Rights Defense Center, we know that at least four percent of all convictions in the U.S. are wrongful. And, according to the Bureau of Justice, “more than half…come from governmental misconduct.”
Put another way, every day of every year governmental malfeasance wrongfully convicts fifty -five individuals. Lives destroyed. Families shattered. Dreams murdered.
And all for what? Ambition? A departmental promotion? An eventual jump from prosecution to a federal judgeship? More than once I have heard law enforcement officials bantering that they didn’t invent the game, they just play it. Is it any surprise that more times than not police and prosecutors alike take the easy way out?
Whoever they suspect as the culprit based on the circumstantial evidence initially before them, that becomes their suspect. Suddenly crucial evidence is being overlooked, in some cases destroyed.
Witnesses who should be interviewed are ignored so as not to create exculpatory evidence for the defense. Witnesses are seduced or coerced into telling the police what they want to hear.
Evidence that misaligns with their theory is often dismissed as “not material.” Coercive confessions are extracted and solid leads are ignored. What should be an unbiased investigation by agents of the state who wield immense power is now a smear campaign and all out effort to pin it on the suspect.
Add to this already heavily stacked and precariously balanced tragedy waiting to come tumbling down on somebody an overworked and incompetent defense counsel and what you have is the recipe for a wrongful conviction.
Then there is the CSI effect, the unsubstantiated belief that many jurors have that forensic science is an exact science. Both television and media have done their respective shares of damage to the already biased process of a defendant left with the task of proving his innocence against insurmountable odds.
People tend to think that forensic analysis of blood splatters, hairs, fibers, blood, or semen is an exact science. But in reality it’s quite to the contrary.
The reliability of forensic science depends on the training, professionalism, and impartiality of laboratory scientists. Often a conviction or acquittal hangs in the balance of this “scientific” testimony.
These scientists work for the state and law enforcement, they are part of the “team” and their testimony is representative of that. And to further muddy the waters, defense attorneys often don’t educate themselves in the forensic science in question, making it impossible for them to effectively cross-examine.
Then it comes down to the jury, everyday people plucked from the tedium of their lives to serve in this most sacred rite of convicting or acquitting the accused. Experienced attorneys know from experience that juries are fickle creatures, susceptible to persuasion and untrained in the law.
Unfortunately for the accused, this body of individuals is responsible for the quality and longevity of life that awaits them. And even more troubling is that jurors are known to vote more in accordance with the social pressures around them, than with their consciences.
Why? Because as many jurors have revealed in trial exit interviews they “didn’t want to be the one to hang the jury,” or, others have said, “well, these guys are here, so they must be guilty of something.”
And my personal favorite, “all I could hope for was that the truth would eventually come out during the appeal process, because even though I voted to convict…I was far from convinced…” Which brings us to the appeal process as a whole.
From experience I can tell you that it’s the equivalent of trudging up a muddy bank while doused in fecal matter and blind-folded. Your objective is to get to the top, but law is not a three dimensional universe and it’s not always clear which way is up. Your senses are often blinded by the realities of incarceration and the statistics of success are discouraging.
According to the National Registry of Exoneration in the last thirty-two years there have been 2,796 exonerations. That is an average of 87 exonerations per year, with 2016 as an outlier year with a 166 exonerations.
I began to realize that given the fact that there are over 40,000 wrongful convictions per year that my statistical probability of exoneration was 0.000087.
To say the least, nobody should be encouraged by this minuscule fraction. And as I sat with this probability for days and then weeks I remembered from my times in Vegas some of the probabilities that I had somehow carried with me over the years.
First of all, the probability that I cite here is the equivalent of 11,494 to one. And in terms of Vegas, this means that someone in my predicament is 18 times more likely to win one of those slot machine jackpots than to overturn a wrongful conviction.
Or if you prefer a comparison to roulette, someone in my predicament is 360 times more likely to hit lucky number fourteen on a single number bet than they are to overturn a wrongful conviction.
It appears that we may be addressing this issue of wrongful convictions the wrong way. Here’s why I say this. The appeal process is jaded by a pool of judges that are ninety percent ex-prosecutors.
Second, per the law, appellate courts must review cases in the light most favorable to the state. Which, by my estimation is like telling an umpire or referee to make his calls in accordance with Vegas odds or his team of choice, his pick.
Add to these statistics the problematic reality that a large portion of these wrongfully convicted are not mentally, physically, or financially equipped to rightfully appeal their convictions. Most are incarcerated in facilities that lack functioning law libraries, paralegals, or even up to date legal research materials.
The only real solution is to give governmental officials a reason to treat the lives that they wrongfully condemn with care, with justice, with decency.
Whether we’re talking about crooked cops who force confessions, intimidate witnesses, destroy or plant evidence, lie under oath, or any of the other shady activities they do; or prosecutors who fail to disclose exculpatory evidence, grant immunity to witnesses who they know are lying, or accept evidence from cops they know to be crooked, or any of the other prosecutorial misconduct that they do; or whether we’re talking about the judges who simply fail to uphold the law based on ineptitude or prejudice and thereby proceed to rubber-stamp people into oblivion they do all of this because there are no actual consequences for their actions.
One way or another they have immunity and so long as they do justice will not be served.
We have collectively allowed a system to be created where their promotions, the very trajectory of their careers is not based on upholding the law or justice, rather it’s based on a metric of winning.
Winning at all cost. A metric without consequence is a recipe for abuse, and abuse leads to wrongful convictions.
This injustice kills people. It claims, dismantles and destroys lives. It actually tortures people. It does so forty-thousand times a year with absolute impunity and mainstream media doesn’t even touch it. And the worst part of all this that I’ve mentioned is that it’s not even considered a crime.
It’s an open attack on Justice.
It’s an attack on families.
It’s an attack on dreams.
It’s an attack on freedom.
And, it’s actually an attack on humanity.
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Look out for next week’s publication: A Plea To New Mexicans